Education

Are asylum Seekers' Children Allowed to go to Nursery?

Children of three and four years old are entitled to free nursery education. This would be provided at a nursery school, nursery classes at a primary school or at a private nursery which has entered into a partnership agreement with the education authority.

The date at which a child will become entitled to free nursery places will depend on when their birthday falls. Where a child's third birthday falls on or between March 1st and August 31st, they would begin nursery at the start of the autumn term (August to December) immediately after that birthday. Where a child's third birthday falls on or between September 1st and December 31st, they would begin nursery at the start of the spring term (January to February) immediately after that birthday. Where a child's third birthday falls on or between 1st January and the end of February, they would begin nursery at the start of the summer term (March to July) immediately after that birthday.

Children receiving free nursery education are entitled to a total of 412.5 hours per school year. This works out as about two and a half days a week.

The legislation which introduced this right was made by the Scottish Parliament. This means that it does not affect 'reserved matters'. 'Reserved matters' are things which only the Parliament in Westminster can make laws about. Education is a 'devolved matter', but immigration and asylum is reserved. 'Devolved matters' are things which only the Scottish Parliament can make laws about. It has been argued by some (including the Scottish Executive) that the education of children of asylum seekers is a reserved matter. If that is the case, then the provision of free nursery education is not a right which such children would enjoy.

Having said that, the education authority have general powers to provide education (including nursery education) to anyone within their area - even where they do not have a duty to do so. In practice, it is likely that nursery education will be made available to the children of asylum seekers.

Relevant Legal Sources:

sections 1(1), 1(1A), 1(1B) & 1(1C) Education (Scotland) Act 1980, as amended
sections 32 to 38 Standards in Scotland’s Schools etc. Act 2000
Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002

I feel that I am being picked on by my teacher. What can I do?

Teachers should treat all of their pupils with dignity and respect. Teachers are also responsible for making sure that pupils are able to concentrate on their work and are safe in the classroom. So they may have to tell pupils off from time to time, or punish pupils who are misbehaving.

However, if a pupil is being picked on by a teacher then they should speak to the principal teacher, guidance teacher or the head teacher about it. Younger pupils may prefer to ask their parents to speak to the school on their behalf.

If that doesn't help a formal complaint can be made to the education authority. In serious cases of bullying, then a complaint can be made to the General Teaching Council for Scotland about the teacher in question.

If a pupil is being picked on by a member of staff for reasons relating to their gender, racial group or disability, then this may amount to discrimination. Legal proceedings can be brought against the education authority, or help can be sought from the relevant equality commission (Commission for Racial Equality, Equal Opportunities Commission or Disability Rights Commission).

Relevant Legal Sources:

Sex Discrimination Act 1975, as amended
Race Relations Act 1976, as amended (Education authorities have duties under the Race Relations Amendment Act 2000 to promote race equality which are legally enforceable)
Disability Discrimination Act 1995, as amended

I am finding it difficult to keep up with my school work but I don’t want to draw attention to myself. What can I do?

Where pupils are having trouble with learning at school, then the school should provide some extra help. The general legal provision is that the education provided should be appropriate to the requirements of each pupil and should include provision for any special educational needs. It is important that pupils or parents let the relevant teachers know where a child is having trouble with their school work. This will help the school to make sure that the work given is suitable.

As of September 2005, the education authority will organise for the formal identification of pupils with additional support needs. Children have additional support needs if, for whatever reason, they need extra help to reach their potential at school. This can be for a number of reasons, including linguistic difficulties, or social or emotional problems which make it hard for a pupil to concentrate at school. Parents can request that their child be assessed to determine the source, nature and extent of any difficulties at school. These assessments might include educational, medical or psychological assessments or examinations, or other types of assessment as well. The education authority will require to make adequate and efficient provision to meet pupils’ additional support needs. Pupils who require support from more than one agency (e.g. education and social work or education and health) will be entitled to a Co-ordinated Support Plan (CSP) setting out in detail what support they require. The CSP is legally binding on the education authority.

However, this new legislation was made by the Scottish Parliament. This means that it does not affect 'reserved matters'. Education is a devolved matter, but immigration and asylum is reserved. It has been argued by some (including the Scottish Executive) that the education of children of asylum seekers is a reserved matter. This might mean a two-tier system, with the children of asylum seekers accessing the old system and other children the new system, which would be practically unworkable. Children outwith the new system could be provided for under non-statutory Personal Learning Plans or Individualised Educational Programmes which share some features with CSPs, but are not legally binding.

Relevant Legal Sources:

section 1 Education (Scotland) Act 1980, as amended
Education (Additional Support for Learning) (Scotland) Act 2004

My teacher says I must go swimming with my class but I am not comfortable wearing a swimming costume due to my cultural and religious beliefs. I do not want to cause trouble or a fuss.

Physical education is an essential part of school, and is one of the few subjects which the law specifies must be taught at school. Pupils are generally expected to take part in PE classes, just as with other classes. In many schools swimming costumes are specified for swimming lessons as part of the school's dress code or uniform policy. Even if it is not, pupils may legitimately be disciplined for refusing to take part in swimming or if they repeatedly forget to bring the correct gear for swimming. However, if a pupil does not wish to wear a swimming costume for religious or cultural reasons, then the school will have to respect those beliefs. The school may be able to make changes which would allow pupils to participate in swimming (e.g. arranging single sex swimming lessons) or they may allow such pupils to choose not to swim.

Relevant Legal Sources:

sections 1 and 9 Education (Scotland) Act 1980, as amended
Race Relations Act 1976, as amended (only in specific circumstances where indirect discrimination is applicable)
The Employment Equality (Religion or Belief) Regulations 2003

I like my teacher and my support worker but they ask me things about my family which I do not necessarily wish to discuss with them. My parents say what happens in the family stays in the family. I am unsure what to do.

Everyone has a right to confidentiality, including children. This means that pupils do not have to tell teachers or support workers about private family matters. If so, a pupil should simply explain politely to the teacher that they do not wish to talk about their family situation at school.

Conversely, if a pupil does want to discuss confidential matters with a teacher or someone else, then they should respect that confidentiality. This means that they should keep what they are told secret and not tell anyone else unless the child is in imminent danger. Even in such cases the disclosure should only be made to the appropriate agency, such as the police or child protection workers.

Can I move schools? I am being bullied.

In the first place, the education authority chooses which school a pupil should go to. This will usually be their local 'catchment area' school. However, parents can make a placing request - this is a form which asks to move their child to a different school (children over school leaving age can make a placing request for themselves!) Normally children will be allowed to go to the school their parents have asked for, unless it is already full or there is another good reason not to move to that school. If a placing request is made, the pupils will not normally be entitled to free transport to the new school.

If a placing request is refused, the person who made the placing request can appeal against the refusal. The appeal is heard by an education appeal committee. If the appeal committee refuse an appeal, there is a final right of appeal to the Sheriff Court. Although a parent can make as many placing requests as they need to, the right of appeal to the education appeal committee about a placing request refusal is limited to one per year.

So, if a school is genuinely full, it may be wiser to make a second placing request rather than make an appeal. Parents can get advice about placing requests from ENQUIRE (www.enquire.org.uk/enquire).

If a child is being bullied at school it may be possible to stop the bullies without moving school. Parents and/or the pupil should speak to the head teacher or to the guidance teacher and tell them who is responsible for the bullying. It is important that this is done as soon as possible. The school has a duty to try to stop the bullying. Every school should have an anti-bullying policy which sets out how they will try to do this. This can be different in different schools, so parents should be sure to get a copy and read it, so they know what to expect.

If a pupil is being physically abused or if other people are stealing things from them, consideration may be given to reporting the bullies to the police, even if these things are happening at school. The police should investigate these complaints and the bullies may be charged or they may be referred to a children's panel.

Also, if a child is being repeatedly harassed (verbally or physically) by other pupils, the pupil can go to court themselves (or with help from their parents) to get the court to grant an interdict forbidding any further harassment. It is possible to ask the court to attach a power of arrest to such an interdict in appropriate cases.

Relevant Legal Sources:

section 28A Education (Scotland) Act 1980, as amended
Protection from Abuse (Scotland) Act 2001

I do not like the food that the school provide. Can I do anything?

School dinners are not always to everyone's taste. If a pupil does not like anything on the menu, it is possible to try speaking to the catering staff and asking for other dishes from time to time. Pupils may bring a packed lunch to school (the school must provide somewhere to eat it) or go home to eat lunch there. Children whose families are receiving support from NASS (National Asylum Support Service) are entitled to free school meals, but pupils can only access these by taking school dinners. The children of asylum seekers who are in receipt of local authority support are also entitled to free school meals.

If a pupil cannot eat the school meals for religious or cultural reasons or due to a medical complaint or allergy, then the school should be notified as soon as possible. They would then have to make adjustments to the menu so that there was something the pupil could eat.

Relevant Legal Sources:

section 53 Education (Scotland) Act 1980, as amended
Part VI, Immigration and Asylum Act 1999
Race Relations Act 1976, as amended (only in specific circumstances where indirect discrimination is applicable)
Disability Discrimination Act 1995, as amended
The Employment Equality (Religion or Belief) Regulations 2003

Can the children of detainees go to school?

The regulations which govern the running of detention centres (or removal centres, as they are now known) say that educational classes must be provided and that every detained person able to do so should be encouraged to take part.

Section 1 of the Standards in Scotland’s Schools etc. Act 2000 confers a right to school education provided by the education authority on every child of school age. Educational classes in detention centres are not provided by education authorities. However, the 2000 Act is an Act of the Scottish Parliament. This means that it does not affect 'reserved matters'. Education is a devolved matter, but immigration and asylum is reserved. It has been argued by some (including the Scottish Executive) that the education of children of asylum seekers is a reserved matter.

If so, then this right does not apply to the children of asylum seekers or to the children of detainees. However, the Education (Scotland) Act 1980 is an Act of the Westminster Parliament and so certainly applies, whatever view is taken of the above arguments. This should allow a detained parent to make a placing request to an education authority school which, subject to the usual grounds of refusal (e.g. the school being full etc), should be granted and would oblige the education authority to place the child in that school.

There would then arise a question over whether the child could lawfully be prevented from attending a local authority school while residing at a detention centre. This may require to be resolved by the courts as the issues which arise are complex.

Relevant Legal Sources:

sections 28A Education (Scotland) Act 1980, as amended
section 1 Standards in Scotland’s Schools etc. Act 2000
The Detention Centre Rules 2001 (SI 2001/238)